Defendant, the Secretary of Health and Human Services ("Secretary"),
moves for relief from this court's final judgment, dated June 12, 1991,
pursuant to Fed.R.Civ.P. 60(b)(4) based on the theory that the judgment is
void for lack of subject matter jurisdiction. As a basis for this claim,
the Secretary asserts that plaintiff failed to file her motion for
attorney's fees within the jurisdictional time limit established by the
EAJA. In response, plaintiff argues that the EAJA's time limit within
which a prevailing party must file an application for attorney's fees is
not jurisdictional but rather a statute of limitations that is subject to
waiver and rules of equitable tolling. In the alternative, plaintiff
argues that even if this time limit were jurisdictional, defendant may
not collaterally attack a final judgment based on a theory that it is
void where defendant had an opportunity to litigate the matter during
trial or on direct appeal but failed to do so.

BACKGROUND

The procedural history leading to the present motion is not in
dispute. Initially, plaintiff brought the underlying action pursuant to
section 405(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g),
to review a final determination of the Secretary denying plaintiff's
application for disability insurance benefits and Supplemental Security
Income under the Act. By order dated January 18, 1991, this court adopted
the Magistrate's Report-Recommendation in favor of plaintiff and remanded
the case to the Secretary for the calculation and payment of benefits.
The Court's final judgment on the merits of this action was entered on
January 23, 1991.

As a result of this favorable ruling, on April 23, 1991, plaintiff
submitted, by mail, a motion for attorney's fees pursuant to the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d). After hearing
oral argument on this motion, this court granted plaintiff's motion and
awarded $7,140.64 in attorney's fees and costs. However, in calculating
the amount of fees to be awarded, the court refused to adopt plaintiff's
argument that it should use the "legal services" rate of the Consumer
Price Index ("CPI-U"). Instead, it employed the "all items" index of the
CPI-U.

Plaintiff appealed this court's order for the limited purpose of
seeking a ruling with regard to the question of the proper index to be
used in calculating attorney's fees under the EAJA. The Secretary filed
no cross appeal. At a preargument conference with a staff attorney
employed by the Second Circuit, the staff attorney raised the question of
whether plaintiff's motion for fees had been timely filed. As a result of
this conference, plaintiff withdrew her appeal. Therefore, this court's
ruling of June 12, 1991, with regard to the issue of attorney's fees, is
the final judgment of the court on that issue.

DISCUSSION

A. Is the EAJA's Time Limit Jurisdictional or a Statute of Limitations?

The Secretary argues that the EAJA's 30 day limitation to submit an
application for attorney's fees is jurisdictional; and that since
plaintiff did not file within 30 days, this court lacked subject matter
jurisdiction to hear plaintiff's motion for an award of attorney's fees.
As support for this argument, defendant cites Long Island Radio Co. v.
NLRB, 841 F.2d 474, 477 (2d Cir. 1988), in which the Second Circuit held
that failure of a prevailing party to timely submit an application
deprives a court of subject matter jurisdiction to award attorney's
fees. Id. at 477; see also Everard v. Secretary of Health and Human
Servs., 742 F. Supp. 739 (N.D.N.Y. 1990) (McCurn, C.J.).

Plaintiff's attorney admits that he filed this motion one day late.
Although he mailed the notice of motion on April 23, 1991, the last day
on which to file an application for attorney's fees, it was not filed by
the clerk in Utica until the following day*fn1 However, plaintiff argues
that the EAJA's 30 day time limit is not jurisdictional but rather a
statute of limitations. As support for this argument, plaintiff cites the
United ...

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